A
Hemet-area couple who referred to each other as “Bonnie and Clyde,” according
to a friend who turned prosecution witness against them, were properly
convicted of first degree murder with special circumstances, the Fourth District
Court of Appeal ruled Friday.

Div.
Two said there was “overwhelming,” “consistent,” and “compelling” evidence that
Joshua Wahlert and Tracy Leann Garrison had murdered Michael Willison in 2001,
and that they had done so in the course of a robbery and kidnapping. Possible
evidentiary or instructional errors by Riverside Superior Court Judge Christian
F. Thierbach were harmless beyond a reasonable doubt, Justice Jeffrey King
wrote for the panel.

Both
defendants were sentenced to life imprisonment without parole. Wahlert drew an
additional term of 25 years to life for shooting the victim, along with a
three-year term on a separate charge of brandishing a weapon, while Garrison
received a one-year enhancement for participating in a crime with an armed accomplice.

Two
Juries

Wahlert
was 26, and Garrison 22, when the jury found them guilty of killing the
39-year-old Willison, who lived in Temecula. The pair were tried before
separate juries that delivered their verdicts within 90 minutes of each other.

Willison
was viciously beaten, stabbed five times in the chest and neck, and shot twice
in the head. A jogger found his body near some large rocks in a rural area of
the county.

Police
tied the killing to Wahlert after he was arrested on the unrelated brandishing
charge. Police discovered that the truck Wahlert was driving at the time
belonged to Willison, and found clothing stained with the victim’s blood, along
with his checks, credit cards and business cards.

Garrison
was involved romantically with both Wahlert and Willison, and all three were
methamphetamine users, witnesses testified. A friend and fellow user, Jon
Ramirez, said that Garrison had talked to him about a plan for her and Wahlert
to rob and kill Willison, take his money, then go to Las
Vegas to get married.

Ramirez
testified that nine days before the body was found, he and Willison were
smoking methamphetamine when Garrision and Wahlert came in and abducted
Willison at gunpoint. Wahlert was the only one who was armed but Garrison
appeared a willing participant, he said.

Wahlert
later told him that they had killed Willison and gave him some of Willison’s
property, he testified.

The
juries also heard a tape recorded phone conversation in which the defendants
implicated themselves and each other. The “pretext” call was arranged by two
detectives, one of whom was with Wahlert at one location and the other with
Garrison at a different location.

Intervening
Decision

While
the appeals were pending, the U.S. Supreme Court decided Crawford v. Washington (2004) 541 U.S. 36,
concluding that the use of “testimonial” hearsay—out-of-court statements of
other persons obtained for use in prosecution, as to which the declarant cannot
be cross-examined—violates the Confrontation Clause of the U.S. Constitution.

Garrison’s
court-appointed appellate lawyer, Richard A. Levy of Torrance,
argued that because Wahlert did not testify at trial and could not otherwise be
cross-examined, the use of his statements on the tape violated Crawford.

King
agreed. The justice said the call was not a “casual” conversation akin to what
occurs when the police place suspects together in a patrol car, as prosecutors
contended, but a carefully planned means of gathering evidence.

But
there was no reasonable possibility that Garrison would have received a more
favorable verdict if the jury had not heard the tape, King said, citing
testimony from several witnesses to whom Garrison related the details of the
crime. While that testimony was not entirely consistent, the justice added, it
was clear that Garrison was a willing and active participant in the murder, as
well as the events leading up to it.

“As
to her participation in the murder, whether as a direct perpetrator or as an
aider and abettor of Wahlert’s actions, the evidence of Garrison’s guilt was
overwhelming without regard to Wahlert’s statements during the pretext call,”
the justice summarized.

Unpublished
Portion

King
also rejected, in an unpublished portion of the opinion, Wahlert’s claim that
the verdict was defective because jurors might have erroneously believed that
they could convict him of first degree murder based on implied malice.

The
justice agreed that jurors might have been confused because Thierbach gave the
standard instructions on murder, both with express and implied malice, but did
not give an instruction that murder with implied malice is of the second, not
the first, degree.

But
since jurors found the kidnap-murder and robbery-murder special circumstance allegations
to be true, King explained, they necessarily believed that Wahlert was guilty
of first degree felony murder and it made no difference whether they also
believed him guilty of malice and premeditation.